The APIL Guide to Evidence is a new work offering detailed and practical advice on evidential matters as they relate to personal injury cases. An explanation of the law and applicable procedure is complemented by practical know-how advice, with tips on drafting pleadings and schedules.

Written by a team of experts, this new guide will be essential reading for all PI practitioners.

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1.1 THE IMPORTANCE OF EVIDENCE Evidence forms the very foundation of any legal system and no claim can succeed at trial or before without sufficiently good evidence to support its constituent parts.

Whatever the potential value, there will be little point in pursuing a claim unless the evidence is there to substantiate it. It is a trite but true statement that the court process is often not really about the truth but, rather, it is about the ‘proof’ or, as we shall see, the existence and quality of the evidence gathered by each side, in particular, by the claimant, in any claim for personal injury.

Judicial decision-making is entirely dependent on there being evidence to support or contradict any assertion made by either side in the litigation. Personal injury litigation is no different. Evidence can take many forms but the most common form is the witness statement, whether this is made by the party in question, a lay witness or by the legal representative made in relation to any interim hearing.

Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Evidence is the currency by which the burden of proof is fulfilled. Without evidence there can, in effect, be no claim. Without sufficiently probative evidence the claim is likely to fail.

The legal burden of proof in all aspects of a civil claim is on the claimant. Where the defendant alleges contributory negligence or failure to mitigate, the legal burden rests on the defendant to plead and prove these contentions. However once such issues are raised sufficiently in the pleadings, the onus shifts back to the claimant to disprove the allegation. This is sometimes called the evidential as distinct from the legal burden. We shall see later in Chapter 3 how the onus of proof shifts for example where the defendant has been convicted of an offence arising out of the circumstances of the accident.

However, it is important to be aware of where the burden of proof lies in employer’s liability claims based on breach of a statutory provision. For example, the statutory provision relied on to found the claim may be defended by establishing that it was not ‘reasonably practicable’ to comply with the obligation in question. ‘Reasonable practicability’ is a common phrase found in a number of statutory provisions designed to protect employees at work (the so-called Six Pack). The burden of pleading and proving that compliance with a statutory duty was not reasonably practicable (where the obligation in questions provides such a defence) lies on the defendant. In King v RCOSupport Services, the Court of Appeal made it clear that if the employer defendant fails to establish that it was reasonably practicable to avoid the need or reduce the risk of injury (the case concerned the duty so to do under reg 4 of the Manual Handling Operations Regulations 1992) the claim succeeds without the court needing to find that it was reasonably practicable to avoid the risk or reduce it.

The well-informed practitioner then should be alive not just to the importance of evidence but also on which party the burden of pleading and proving the relevant allegations lie.

1.2 INTEGRAL TO ALL ASPECTS OF PERSONAL INJURY LITIGATION Obtaining sufficiently probative evidence to prove all the parts of a claim is integral to a personal injury claim. In such a claim there must be evidence to establish the essential elements in a successful claim on the balance of probabilities:

• the existence of the duties said to be owed by the defendant to the claimant (whether at common law or under statutory provision); • the breach of duty itself; • the loss and how this was the result of the breach.

1.3 SCOPE OF THIS GUIDE This book intends to equip the reader with a comprehensive and detailed understanding of both the substantive and procedural rules of evidence necessary to bring and maintain a successful personal injury, including clinical negligence, claim.

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